Citation Nr: 0313948
Decision Date: 06/25/03 Archive Date: 06/30/03
DOCKET NO. 02-11 932 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Medical and Regional Office
Center in Wichita, Kansas
THE ISSUE
Entitlement to a rating in excess of 30 percent for bilateral
pes planus.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Harold A. Beach, Counsel
INTRODUCTION
The veteran, who is the appellant in this case, served on
active duty from August 1942 to October 1945.
This case was previously before the Board of Veterans'
Appeals (Board) in March 2003, at which time it was remanded
so that the veteran could be scheduled for a video conference
with a veterans law judge. That hearing was scheduled for
June 2003 but was canceled at the veteran's request. He has
not requested that such video conference be rescheduled, nor
has he requested a hearing before the VA in any other venue
(e.g., a personal hearing at the Board Central Offices in
Washington, D.C.; or a personal hearing at the Department of
Veterans Affairs (VA) Regional Office and Medical Center (RO)
in Wichita, Kansas, before a traveling veterans law judge or
before a local hearing officer). Accordingly, the veteran's
hearing request was considered to be withdrawn. Thereafter,
the case was returned to the Board for further appellate
action.
In December 2002, the veteran's representative raised
contentions to the effect that service connection is
warranted for degenerative joint disease of the first right
metatarsophalangeal joint. That question has not been
adjudicated by the RO or otherwise developed for appellate
action. Therefore, the Board has no jurisdiction over that
question, and it will not be considered below. 38 U.S.C.A.
§ 7104(a) (West 1991 & Supp. 2001); 38 C.F.R. § 20.101
(2001). It is, however, referred to the RO for an
appropriate response.
FINDING OF FACT
The veteran's service-connected bilateral pes planus,
manifested primarily by pain on palpation and the absence of
any arch whatsoever, is productive of no more than severe
impairment.
CONCLUSION OF LAW
The criteria for a rating in excess of 30 percent for
bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155,
5102, 5103, 5103A (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.1,
4.2, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5276
(2002).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Assist
During the pendency of this appeal, there was a significant
change in the law. On November 9, 2000, the President signed
into law the Veterans Claims Assistance Act of 2000 (VCAA),
Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as
amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106,
5107, 5126 (West Supp. 2001)). That law redefined the
obligations of the VA with respect to the duty to assist and
included an enhanced duty to notify a claimant as to the
information and evidence necessary to substantiate a claim
for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A. In
August 2001, the VA published final rules implementing the
VCAA. 66 Fed. Reg. 45620 (August 29, 2001) (codified as
amended at 38 C.F.R. §§ 3.102, 3.156, 3.159, and 3.326(a)).
After reviewing the record, the Board finds that the RO has
been notified of the VA's duty to assist him in the
development of his claim. By virtue of information sent to
the veteran in the Statement of the Case (SOC) and in the
Board's remand of March 2003, he and his representative were
notified of the evidence necessary to substantiate the claim
of entitlement to an increased rating for pes planus.
Indeed, the SOC sets forth the provisions of the enabling
regulations, i.e., 38 C.F.R. § 3.159, applicable to the VCAA.
Moreover, in October 2001 the RO telephoned the veteran and
informed him of the VA's duty to assist him in the
development of his claim. Such information notified the
veteran of what evidence and information VA would obtain for
him, with specific references to such materials as government
reports and medical records. The RO also explained what
information and evidence the veteran needed to provide. See
Quartuccio v. Principi, 16 Vet. App. 183 (2002).
In an effort to assist the veteran with his claim, the RO has
made efforts to obtain relevant records adequately identified
by the veteran. For example, in May 2001, the RO requested
records from the VA Outpatient Clinic in McAllen, Texas,
reflecting the veteran's treatment from January 2001 through
the present.
Evidence received in association with the veteran's claim
consists of the report of a podiatric examination, performed
by the VA in September 2000 and records from private health
care providers under contract to the South Texas VA Health
Care System, which reflect the veteran's treatment from
January 2001 to March 2001. As noted above, the veteran has
been informed of his right to have a hearing in association
with his appeal; however, to date, he has declined to
exercise that right.
After reviewing the record, the Board finds that the RO has
met its duty to assist the veteran in the development of his
claim. In fact, it appears that all relevant evidence
identified by the veteran has been obtained and associated
with the claims folder. In this regard, it should be noted
that the veteran has not identified any outstanding evidence
(which has not been sought by the VA) which could be used to
support the issue of entitlement to an increased rating for
bilateral pes planus. Indeed, during his duty to assist
phone call in October 2001 and in a statement (VA
Form 21-4138) received in November 2002, the veteran reported
that he did not have any additional evidence to submit.
Accordingly, there is no need for further development of the
evidence in order to meet the requirements of the VCAA.
II. The Facts
In September 2000, the veteran underwent a VA podiatric
examination. He reported increased pain which consisted of
near-continuous tingling down his legs with weakness,
stiffness, and swelling, but no heat or redness or lack of
endurance. He stated that he was unable to stand for any
length of time and that if he walked for two blocks, he got
excruciating pain and was "done" for the rest of the day. It
was noted that he took aspirin as well as prescription
medication for the pain and that he was advised to wear 3/8-
inch insole wedges with arch supports. It was also noted
that he did not use any crutch, brace, or cane but that he
had special shoes with inserts. The shoes were well worn on
both sides. There was no evidence of surgery or injury to
his feet. He stated that his pes planus impaired or
precluded many activities, such as exercise and dancing.
On examination, the veteran was comfortable and did not
appear to be in any acute distress. His gait was slightly
slow, and he wore thick-soled shoes with insoles,
bilaterally. He did not appear to have any abnormal weight
bearing. He demonstrated flat feet, bilaterally, without any
arch whatsoever. At best, there was about 0.5 centimeters
from the top of the arch to the foot. He was tender to
palpation of the feet without any localization. The range of
motion of the ankles was from 0 degrees of dorsiflexion to
40 degrees of plantar flexion. The veteran appeared very
sensitive and retracted his feet, when the examiner touched
them for sensitivity. Following the examination, the
impression was bilateral foot pain with increased pain.
Subsequently performed X-rays revealed bilateral pes planus
with first right metatarsophalangeal joint degenerative
disease.
Medical records from private health care providers under
contract to the VA show that the veteran received treatment
from January 2001 to March 2001, primarily for generalized
itching over his body. In January 2001, he also reported
increased pain under his left foot. On examination, there
was tenderness to palpation over the medial aspect of the
left foot with no crepitation. The various diagnoses
included degenerative joint disease.
III. Analysis
The veteran seeks an increased rating for his service-
connected bilateral pes planus. He reports increased
symptomatology which causes difficulty walking. He notes
that he uses arch supports and that he also has canes.
Disability evaluations are determined by comparing the
manifestations of a particular disability with the criteria
set forth in the DC's of the Schedule for Rating
Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. Part 4 (2001).
The percentage ratings represent, as far as can practicably
be determined, the average impairment in earning capacity (in
civilian occupations) resulting from service-connected
disability. 38 C.F.R. § 4.1. Where there is a question as to
which of two evaluations shall be applied, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required for that rating.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.7.
In accordance with 38 C.F.R. §§ 4.1 and 4.2 and Schafrath v.
Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all
evidence of record pertaining to the history of the service-
connected disability. Where, as here, entitlement to
compensation has already been established and an increase in
the disability rating is at issue, the present (current
rating period) level of disability is of primary concern.
Although the recorded history of a disability is for
consideration in order to make a more accurate evaluation,
see 38 C.F.R. § 4.2, the regulations do not give past medical
reports precedence over current findings. Francisco v.
Brown, 7 Vet. App. 55 (1994).
The veteran's bilateral pes planus is rated in accordance
with 38 C.F.R. § 4.71a, DC 5276. A 30 percent rating is
warranted for severe impairment supported by objective
evidence of marked deformity (pronation, abduction, etc.);
pain on manipulation and use accentuated; indication of
swelling on use; and characteristic callosities. A
50 percent rating is warranted for pronounced impairment,
characterized by marked pronation, extreme tenderness of the
plantar surfaces of the feet, and marked inward displacement
and severe spasm of the tendo achillis on manipulation, not
improved by orthopedic shoes or appliances.
The United States Court of Veterans Appeals (now the United
States Court of Appeals for Veterans Claims, hereinafter
Court) has considered the question of functional loss as it
relates to the adequacy of assigned disability ratings.
DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the
Court held that 38 C.F.R. § 4.40 required consideration of
factors such as lack of normal endurance, functional loss due
to pain and pain on use, specifically limitation of motion
due to pain on use including that experienced during flare
ups. The Court also held that 38 C.F.R. § 4.45 required
consideration of weakened movement, excess fatigability, and
incoordination. Moreover, the Court stated that there must
be a full description of the effects of the disability on the
veteran's ordinary activity. 38 C.F.R. § 4.10.
A review of the evidence discloses that the veteran's
bilateral pes planus is manifested primarily by tenderness to
palpation and a lack of any arch whatsoever. Although he
takes medication for pain and wears special shoes with
inserts, there is no evidence of callosities; or marked
pronation; or marked inward displacement; or severe spasm of
the tendo achillis on manipulation. Indeed, recent
complaints of weakness, stiffness, and swelling, are not
supported by any objective evidence of such symptomatology.
Nor are there any reports of exacerbations or incoordination
associated with his service-connected pes planus. Finally,
there is no evidence of abnormal weight bearing or findings
that the veteran's pes planus is not improved by orthopedic
shoes or appliances. Such symptomatology more nearly
reflects the criteria for severe impairment; and therefore,
there is no reasonable basis at this time for an increased
schedular rating for bilateral pes planus.
In arriving at this decision, the Board has also considered
the possibility of referring this case to the Director of the
VA Compensation and Pension Service for possible approval of
an extraschedular rating for the veteran's service-connected
bilateral pes planus. The evidence, however, does not show
such an exceptional or unusual disability picture, with such
related factors as marked interference with employment or
frequent periods of hospitalization, as to render impractical
the application of the regular schedular standards. 38 C.F.R.
§ 3.321(b)(1) (2001). Rather, the record shows that the
manifestations of his bilateral pes planus are those
contemplated by the regular schedular standards. It must be
emphasized that the disability ratings are not job specific.
They represent as far as can practicably be determined the
average impairment in earning capacity as a result of
diseases or injuries encountered incident to military service
and their residual conditions in civilian occupations.
Generally, the degrees of disability specified are considered
adequate to compensate for considerable loss of working time
from exacerbations of illnesses proportionate to the severity
of the several grades of disability. 38 C.F.R. § 4.1.
Absent evidence to the contrary, the Board finds no reason
for further action under 38 C.F.R. § 3.321(b)(1) (2001).
ORDER
Entitlement to a rating in excess of 30 percent for bilateral
pes planus is denied.
____________________________________________
G. H. SHUFELT
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.